The certificate in question does not appear to be one issued after due enquiry on the basis of plaint presented to Mamlatdar by any of the parties. More over, Section 5(2) empowers the Mamlatdars to issue orders of injunction and not declarations regarding the customary rights. Thus, the action of Mamlatdar in issuing such a certificate is ex-facie illegal and beyond the scope of his powers as conferred by relevant provision. In fact, on reference to Proviso to Section 5(1), it can be seen that Mamlatdar, instead of issuing injunction or directing removal of impediment and obstruction, has powers, for the reasons to be recorded by him, to refuse to interfere in the matter and leave the parties to approach the Civil Court. There is nothing in this provision enabling the Mamlatdar to certify and thereby declare the rights of parties of customary routes/ways. The trial Court, therefore, committed material irregularity in relying upon a piece of evidence, which was ex-facie illegal.
Print Page
Bombay High Court
Union Of India (Uoi) And Ors. vs Maruti Madhav Kerulkar And Ors. on 6 February, 2002
Equivalent citations: 2003 (2) BomCR 177, 2002 (4) MhLj 73
Bench: N Dabholkar
1. Original defendant Nos. 1 to 4, the Union of India and authorities from Ministry of Defence, by this revision petition challenge the judgment and order dated 18-7-2001 in Miscellaneous Civil Apeal No. 61/1998 passed by 2nd Additional District Judge, Ahmednagar, thereby confirming order dated 24-4-1998 passed by 2nd Joint Civil Judge (J. D.) Ahrnednagar, in Regular Civil Suit No. 320/1997.
2. Present respondent Nos. 1 to 7 are original plaintiffs. Respondent, Nos. 8 to 10, three Grampanchayats are original defendant Nos. 6 to 8. Respondent No. 11-Collector, who was defendant No. 5 in the suit represents the State. [Henceforth parties shall be referred to as plaintiffs (respondent Nos. 1 to 7), defence authorities (revision petitioners), Grampanchayats (respondent Nos. 8 to 10) and the Collector, for the sake of brevity].
Plaintiffs approached the Court of Civil Judge, Senior Division, Ahmednagar, by Regular Civil Suit No. 320/1997 for declaration and perpetual injunction. A declaration is sought that undertaking given by Grampanchayat, Nagardeole (defendant No. 6 - respondent No. 8) through its Sarpanch undertaking to surrender the use of roads X1 Y1 and X2 Y2 and other roads in the suit map, is illegal, ultra-vires, null and void and beyond the jurisdiction. In addition, injunction restraining defence authorities from disturbing (obstructing) the plaintiffs from using the suit road and obstructing the conversion of same into a tar road is also prayed for. By an application Exhibit 5, plaintiffs prayed for ad-interim injunction in the same terms as final relief.
By order dated 24-4-1998, 2nd Joint Civil Judge, Senior Division, Ahmednagar, was pleased to allow the application Exhibit 5 and the operative order reads as follows:--
"Application Exhibit 5 is allowed.
Issue ad-interim injunction restraining defendant Nos. 1 to 4 from causing obstruction in the use and enjoyment of the suit road by plaintiffs and other villagers and converting suit road into tar road.
Issue ad-interim mandatory injunction removing obstruction in the use and enjoyment of the suit way by the plaintiffs and other villagers till disposal of the suit. Costs cause in the cost."
It may be stated here itself that the learned counsel for the revision petitioners has pointed out during the course of his arguments that the learned trial Judge has travelled beyond the prayer in the application Exhibit 5. By the application, plaintiffs had prayed for injunction restraining the military authorities from objecting to the use of way by plaintiffs. The operative order as granted also confers the benefit of use of the suit road in favour of other villagers, although that was not prayed either in the prayer clause of the suit or application Exhibit 5. Mandatory injunction regarding removal of obstructions was also not the prayer in the application for interim injunction.
Miscellaneous Civil Appeal No. 61/1998 filed by the military authorities was simply dismissed by 2nd Additional District Judge, Ahmednagar, by impugned judgment and order dated 18-7-2001. Consequently, the order passed by learned Civil Judge, Senior Division, stands confirmed without any variation/modification.
3. A copy of suit map is made available for ready reference by learned counsel for the plaintiffs, which is marked Exhibit A for convenient reference. He has also produced copy of the map drawn by Court Commissioner appointed by the trial Court, which is marked Exhibit B. The road, A, B, C, D, E, F shown by blue colour in the map Exhibit A is the road in question and the disputed part is segment AB.
Admittedly, properties Gut Nos. 291 and 313 of village Bhingar were acquired by the defence authorities long back sometime in the year 1907. These properties are to the east of Ahmednagar-Aurangabad road and, abutting the road and the segment AB cuts across both these survey numbers.
The plaintiffs claim that they own lands to the east of the land acquired by defence authorities. Plaintiffs and other villagers from villages Bhingar, Burhanagar and Nagardeole have been using the road A, B, C, D, E, including the disputed segment AB for approaching Aurangabad Ahmednagar highway since time immemorial, continuously and uninterruptedly. Plaintiffs claim that defence authorities have acquired the portions from Gut Nos. 291 and 313 on either side of segment AB of the road. Impliedly plaintiffs are suggesting that the segment AB of the road is not acquired by the defence authorities. Admittedly, there are quarters of basic training regiment in the southern portion of the lands acquired by military authorities and there are firing ranges in the northern portion. There is also sub station of MSEB located at point C, which is on the eastern boundary of the land acquired by defence authorities. In fact, plaintiffs claim that the villagers have access through three roads as shown in the map by dotted lines, but for the purpose of dispute in question, we are not concerned with those.
It is the claim of plaintiffs that they had been using the road since their forefathers. The lands Gut Nos. 291 and 313 were acquired from ancestors of plaintiff Nos. 1 to 3 and even after the acquisition, plaintiffs and villagers continued to use the way for the purpose of approaching Aurangabad-Ahmednagar road.
Road leading from Burhangar to Aurangabad-Ahmednagar Highway including the disputed segment was taken up for construction under Employment Guarantee Scheme and was completed upto the land acquired by the defence authorities, who did not allow the road to be converted into tar road. The revenue authorities, in exercise of the powers conferred by Mamlatdar's Courts Act, have informed the defence authorities that the said road can be used by all the villagers. A certificate to that effect is issued certifying the existence of road and right to use the same. The defence authorities have not allowed the segment AB to be completed under EGS scheme.
It is also alleged that defendant No. 4 in collusion with Sarpanch of Nagardeole entered into agreement whereby Sarpanch has undertaken to forego other two routes indicated by dotted lines and agreed to use of only one route ABCDEF. In fact, plaintiffs have challenged this act as illegal.
In the month of February, 1995, Station Commander had granted permission for construction of road ABCDEF and conversion of it into tar road. However, in spite of such permission, the defence authorities did not allow the work of the road to be commenced till the filing of the suit.
An incident on the day preceding the day of filing of the suit, wherein plaintiffs and other family members were obstructed from passing by the segment AB, is stated as cause of action for the suit.
4. While arguing the matter before this Court, to a pinpointed enquiry as to what type of rights plaintiffs claim to use the way, learned counsel Shri Gursahani for the plaintiffs has submitted that his clients claim the road to be a "public road" and, therefore, a right to use the same as members of the society and citizens of the country.
In fact some pleadings in the plaint are capable of suggesting a claim of right of easement by prescription and easement of necessity. The contentions that plaintiffs and villagers have been using the suit way since time immemorial continuously and uninterruptedly are capable of suggesting right of easement by prescription. Averments to the effect that plaintiffs own land to the east of the lands acquired by defence authorities and that defence authorities have acquired the lands from ancestors/predecessors in title of plaintiffs is capable of suggesting right of easement of necessity. But Advocate Shri Gursahani clarified that plaintiffs do not claim any such right.
5. Defence authorities, who are the main contesting defendants in the suit, have denied any right of access in favour of either the plaintiffs or the villagers. According to them, plaintiff Nos. 4 to 7 have acquired the lands to the east of basic training centre in the recent past and have got those converted for N.A. use. They are keen to create an access, which would be a shortcut approach to the highway, so that they can claim better price for their lands converted to N. A. use. It is denied that defence authorities have acquired Gut Nos. 291 and 313 in two parts i.e. northern parts and southern parts divided by suit way AB. There is no road in existence as alleged, but only civil servants of electricity board, who are provided with identity cards, are permitted to pass by the pathway in order to enable them to carry out repairs and maintenance of electricity line, Villagers and plaintiffs have alternate route for reaching Ahmednagar-Aurangabad Highway by Darga Dayara road.
EGS road was sanctioned and started on the basis of wrong certificate dated 30-6-1992 issued by Tahsildar. The sanction of EGS road is withdrawn by the Collector vide order dated 13-2-1998, when it was brought to the notice of Collector that the sanction is based on erroneous certificate issued by Tahsildar. (The sanction for the road was issued on 4-4-1995). Subsequently the certificate issued by Tahsildar, purportedly under the provisions of Mamlatdar's Courts Act was considered by Sub Divisional Officer in the revisional jurisdiction and cancelled.
Arrangement between Sarpanch, Nagardeole and defendant No. 4 was not collusive and in fact Administrative Commandant had no authority to give such permission as issued by vide letter dated 28-2-1995, which is relied upon by the plaintiffs. After realising it, the Area Commander has issued another letter dated 25-7-1995 informing cancellation of earlier letter.
As can be seen from the past events, the plaintiffs have been trying to make inroads and create new right on the lands acquired by the defence authorities since 1993-1995. Thus, according to defendant Nos. 1 to 4, suit is barred by limitation and a false incident on the day preceding the date of filing of suit is pleaded in order to bring the suit within limitation.
6. A copy of written statement filed by Collector, Ahmednagar, is available in the record of revision petition. He has denied plaintiffs/villagers having any right of access through the military area. According to Collector, lands acquired for the military purpose are fully under control of military authorities. It is denied that plaintiffs and villagers do not have any alternate way to approach Ahmednagar-Aurangabad road.
According to Collector, certificate dated 30-6-1992 issued by Mamlatdar cannot be termed as certificate under Mamlatdar's Courts Act. The same was issued without complying with legal requirements and, therefore, was being considered in revision and was stayed by the Sub Divisional Officer. (From the copy of order dated 27-3-1999 passed by Sub Divisional Magistrate, Ahmednagar, it is evident that the said certificate was cancelled.). Since sanction accorded to construction of the road under Employment Guarantee Scheme was based on this wrong certificate, the Collector has revoked the same.
7. After considering the arguments of both the parties, learned trial Judge, relying upon the certificate issued by Tahsildar on 30-6-1992 and the order sanctioning the road under EGS scheme dated 4-4-1995, issued by the Collector, supported by affidavits of plaintiffs and villagers, arrived at a conclusion that there can not be any dispute regarding existence of way. According to learned Judge, defendant Nos.l to 4 have admitted existence of way in their written statement Exhibit 34. The report of the Court Commissioner showed existence of the road. According to learned trial Judge, when the existence of road was established, the plaintiffs have successfully established prima facie case. Although it was pointed out to the trial Judge that Collector has subsequently stayed/cancelled, certificate issued by Tahsildar, learned trial Court felt that the cancellation was done without following the procedure prescribed by Section 21 of the Maharashtra Land Revenue Code and, therefore, the order of the Collector and action taken was not legal. According to him, cancellation of certificate was incapable of erasing existence of the road. According to learned Judge, denial of way would amount to denial of right of life.
The learned Judge disbelieved the theory of defendants that there is alternate way, because no evidence in the form of affidavit was adduced and there was no documentary evidence to establish existence of alternate path. Yet the Judge has gone on record to say that even if there is alternate way, the convenience of public cannot be ignored. In other words, according to the learned trial Judge, even if there is alternate route available to the plaintiffs and villagers, if the suit path is more convenient, they cannot be denied enjoyment of the same. Eventually the judgment does not contain any discussion and reasons as to why mandatory injunction of removing obstructions is granted to which learned counsel for the revision petitioners has taken a strong exception.
8. According to learned appellate Judge, the map produced by Government Pleader with Exhibit 148 and map filed by defendants with Exhibit 143 showed existence of the disputed road. The appellate Judge also relied upon certificate issued by Tahsildar dated 30-6-1992 and although collector had cancelled the said certificate and withdrawn the sanction to construct this road under EGS scheme, the learned Judge did not find any satisfactory reason for Collector to review his earlier decision. A reference is also made to the existence of road shown in the report of the Commissioner submitted before the trial Court at Exhibit 63 and say filed by the appellants/original defendant Nos. 1 to 4 wherein they had undertaken to maintain the cart track along segment AB without prejudice to their rights. All these details are relied upon by the appellate Judge to arrive at a conclusion regarding existence of disputed way.
Ultimately, relying upon judgment of Karnataka High Court in Writ Petition No. 3549/1997, the learned Judge felt that allowing military authorities to impose restrictions on the use of the way to general public would be affecting the fundamental rights of freedom of passage as enshrined inArticle 19(1)(d) of the Constitution.
The appellate Court also observed that no alternate route is shown by defendants and, therefore, there was prima facie case in favour of plaintiffs. In view of observations as above, the appeal was dismissed.
In sum and substance, both, the trial Court as well as first appellate Court, have held that plaintiffs have proved a prima facie case, the balance of convenience is in their favour in view of finding that there is no alternate route and, therefore, have granted interim injunction restraining defendant Nos. 1 to 4 from obstructing passage of plaintiffs as also obstructing plaintiffs in carrying out repairs and convert suit road into a tar road,
9. As stated earlier, it was pinpointedly enquired to the Advocate of plaintiffs whether plaintiffs are claiming right of easement either by prescription or by necessity and it was categorically replied that plaintiffs are not relying in any of these rights. On the contrary, it was claimed that plaintiffs are claiming the suit road to be a "public road" and they have fundamental right of passage by that road.
In order to uphold the right claimed by plaintiffs, they must prove that the road is in existence, that the road is being used by public in general and that it is a "public road" as contemplated by Section 20 of Maharashtra Land Revenue Code.
The map of the Commissioner procured by trial Court does indicate existence of some way between the points A and B. The description of this disputed segment in the report of the Commissioner is very cryptic. It reads:
udk'kkrhy b rs v gk >kysyk jLrk v ;k xsViklwu iq<s d fBdk.kkdMs pyrks o rlsp lnj jLrk c ;k fBdk.kh xsysyk fnlrks-
It is further reported that this road seems to have been obstructed by ditches and plantation and also by appearance of white border stones lying scattered. But precise description of the road in terms of its width or elevation from adjacent ground level is not there.
In spite of this, considering that trial Court and Appellate Court found the existence of this way in the maps produced with lists Exhibits 148 and 143, is sufficient, together with the Commissioner's report, to believe that there is some way, route, road between points AB in Exhibit A.
The lower Courts can not be faulted, if at this prima facie stage, those were inclined to believe the affidavits of plaintiffs and some villagers claiming that they had been passing by this road.
10. By so much of evidence, plaintiffs can be said to have prima facie succeeded in establishing two ingredients, existence of way between points A and B and its being used by plaintiffs and others for passage. However, in the light of the case with which the plaintiffs have approached the Court of law, establishing the third ingredient was also necessary. They are claiming a right of passage between points A & B, because according to them, it is a "public road". Term "public road" is not defined in Maharashtra Land Revenue Code although it finds place in Section 20(1), which reads as follows :--
"20. Title of State in all lands, public roads, etc. which are not property of others. -- (1) All public roads, lanes and paths, the bridges, ditches, dikes and fences on, or beside, the same, the bed of the sea and of harbours and creeks, below the high water mark, and of rivers, streams, nallas, lakes and tanks and all canals and watercourses, and all standing and flowing water, and all lands wherever situated which are not the property of persons legally capable of holding property, and except in so far as any rights of such persons may be established, in or over the same, and except as may be otherwise provided in any law for the time being in force are and are hereby declared to be, with all rights in or over the same, or appertaining thereto, the property of the State Government and it shall be lawful for the Collector, subject to the order of the Commissioner, to dispose of them in such manner as may be prescribed.........................."
It is evident that only those roads, land under which is not held by any person legally capable of holding property are, thus, "public roads" being vested in the State Government as its property, Since the plaintiffs are coming to Court with a case that segment AB is a "public road", it was onus of proof upon them to establish that the said segment is a "public road" as contemplated bySection 20.
Respondent Nos. 1 to 4 have come with a case that property which is now numbered as Gut Nos. 291 and 313 across which the segment AB cuts, is a property acquired by defence authorities in the year 1907. Xerox copy of Annexure C provided by learned counsel of the plaintiffs indicates that an area admeasuring 346.88 Acres was acquired by Bombay Government notification No. 2901 dated 29-3-1907. From the entry in the column regarding data and other particulars of acquisition, it is possible to infer that the proceedings had started sometime in the year 1878. In para 2 of the plaint, plaintiffs anticipating such a stand by defence authorities, have come with a case that defendant No. 4 through defendant Nos. 1 to 3 had acquired the lands to the north and south side i.e. both the sides of the road, claiming impliedly, that the road was in existence prior to acquisition and the land under the road was not part and parcel of the land acquired by the defence authorities.
Ordinarily there would be a presumption in favour of acquiring body that it has acquired the total land included in the acquisition award, unless there are reservations. On reference to Annexure C, it can be seen that retention of a mosque and three shrines was sanctioned subject to conditions laid down in the certificate accompanying letter dated 19-3-1946. Neither Annexure C contains any reference to the reservation of road between points AB, nor plaintiffs have produced any other correspondence by which such reservation can be inferred. In fact, onus is on the plaintiffs to establish that the portion of land under disputed road was not acquired by defence authorities.
In para 6 of the plaint, plaintiffs have boasted that Defence Estate Officer is in possession of the map and plaintiffs had personally visited the office of Defence Estate Agent and confirmed the existence of road even in the record of defendant Nos. 1 to 4. Neither a certified copy of that map obtained from defence authorities is produced on the record nor there appears any move requesting the Court for directions to defence authorities to produce the map that was allegedly shown by the defence authorities to the plaintiffs, showing existence of way.
In the absence of proof that particular road is a "public road", merely because people are allowed to pass through certain property, will not be sufficient to designate the road as a "public road". Further proof in the form of documentary evidence was possible and necessary in case plaintiffs desired the Court to believe that the road is a "public road". Controverted assertions which can be established by documentary evidence cannot be said to have been established merely by statements on oath. Failure to produce possible documentary evidence, on the contrary invites adverse inference. As can be seen from Section 20 of Maharashtra Land Revenue Code, in order that a road should be a "public road", the land under the road must vest absolutely in the State. It vests in the State, by virtue of Section 20; provided the property is not held by any individual capable of holding the property. Defence authorities cannot be said to be having any legal impediment in holding the property. Liberty enshrined by Article 19 would be exercisable and enforceable against only that property of State which is held for public use or dedicated to people.
11. Both the lower Courts have placed heavy reliance upon the certificate issued by Tahsildar on 30-6-1992, in spite of the fact that the said certificate is cancelled by order of Sub Divisional Officer, passed in exercise of the revisional powers conferred by Section 23(2) of the Mamlatdars'Courts Act, 1906, vide judgment and order dated 27-3-1999. Certainly the decision of Sub Divisional Officer was not available when Civil Judge, Senior Division, decided the interim application by order dated 24-4-1998. But in para 8 of the written statement, defendant Nos. 1 to 4 had indicated that Collector vide his letter dated 13-2-1998 had indicated that certificate issued by Tahsildar was wrong. Learned trial Court has not addressed itself to this aspect regarding validity of the certificate and the extent of its reliability. The certificate is at paper book page 124. It is titled as "Dakhala" i.e. certificate. It is said to have been issued in exercise of the powers conferred by Section 5(2) of the Mamlatdars' Courts Act, 1906 and it certifies not only existence of the road, but goes further to state that agriculturists are using it as customary route. A reference to Section 5(2) of the Mamlatdars' Courts Act, 1906, is, therefore, inevitable which reads as follows :
"5. Powers of Mamlatdar's Courts. --
(1)........ ...... ........ ........
(2) The said Court shall also, subject to the same provisions, have power within the said limits, where any impediment referred to in sub-section (]) is erected, or an attempt has been made to erect it, or, when any person is otherwise than by due course of law disturbed or obstructed, or when an attempt has been made so to disturb or obstruct any person, in the possession of any lands or premises used for agriculture or grazing, or trees, or crops, or fisheries, or in the use of water from any well, tank, canal or water-course, whether natural or artificial used for agricultural purposes, or in the use of roads or customary ways thereto, to issue an injunction to the person erecting or who has attempted to erect such impediment, or causing, or who has attempted to cause, such disturbance or obstruction, requiring him to refrain from erecting or attempting to erect any such impediment or, from cuasing or attempting to cause any further such disturbance or obstruction. "
From the portion underlined for the sake of emphasis, it is evident that Mamlatdar has powers to injunct a person, who has caused or attempted to cause any impediment in the use of roads or customary ways. On reference to title cause of Section 5 as also Sub-section (3), which prescribes a limitation of six months to entertain such a suit, it can be seen that the Mamlatdar can exercise such powers while deciding a suit instituted for the purpose before his Court. The position is crystal clear, when we refer to Section 7 of the said Act, which states that all the suits under this Act shall be commenced by a plaint, to be presented to the Mamlatdar in open Court by plaintiff.
The certificate in question does not appear to be one issued after due enquiry on the basis of plaint presented to Mamlatdar by any of the parties. More over, Section 5(2) empowers the Mamlatdars to issue orders of injunction and not declarations regarding the customary rights. Thus, the action of Mamlatdar in issuing such a certificate is ex-facie illegal and beyond the scope of his powers as conferred by relevant provision. In fact, on reference to Proviso to Section 5(1), it can be seen that Mamlatdar, instead of issuing injunction or directing removal of impediment and obstruction, has powers, for the reasons to be recorded by him, to refuse to interfere in the matter and leave the parties to approach the Civil Court. There is nothing in this provision enabling the Mamlatdar to certify and thereby declare the rights of parties of customary routes/ways. The trial Court, therefore, committed material irregularity in relying upon a piece of evidence, which was ex-facie illegal.
Learned trial Judge has criticised the Collector because his order revoking sanction of EGS scheme and cancelling/staying the certificate dated 30-6-1992 is not backed by order of Commissioner, as required by Section 20 of Maharashtra Land Revenue Code. On reference toSection 20, it is evident that orders, which are required to be backed by orders of Commissioner or State are those pertaining to disposal of any of the State properties referred in the said section.
Such a support is not necessary while exercising revisional jurisdiction under Mamlatdar'sCourts Act in the matters not regarding disposal of property.
Collector is also criticised for not following procedure prescribed by Section 21 of Maharashtra Land Revenue Code. It must be said that by revoking order sanctioning construction of road under EGS scheme, the Collector cannot be said to have taken action under Section 21 of extinguishing existing rights of "public road". Even while considering the certificate issued by Mamlatdar in revisional jurisdiction, the same cannot be said to be action of extinguishing rights of public over Government road, because prior to this certificate or sanction of road construction under EGS scheme (which according to Collector, was an error) there is nothing to indicate that said road is "Government road" dedicated to people.
12. Eventually the Additional District Judge, when he decided Miscellaneous Civil Appeal No. 61/1998 by order dated 18-7-2001, had benefit of referring to the judgment and order passed by Sub Divisional Officer on 27-3-1999. A copy of this order is available at paper book pages 125-128 and it is a speaking order. It indicates that Collector, in exercise of powers conferred by Section 23(2A) of Mamlatdar's Courts Act, made over the matter for being considered in revisional jurisdiction to Sub Divisional Officer. While considering this revision, Executive Engineer, B & C, Ahmednagar; Station Commander, Station Headquarter, Ahmednagar and Village Officer, Bhingar, are shown as respondents against the State of Maharashtra. The contents in the order indicate that the certificate in question was issued to third party i.e. Village Officer, Bhingar. In fact, on reference to the Dakhala, it also cannot be perceived that the same was issued to Village Officer, Bhingar, at his application. It is equally curious as to why Village Officer should require such a certificate and from the order of Sub Divisional Officer, it is evident that the certificate was issued without an opportunity of being heard to the defence authorities, who were to be adversely affected by the said certificate, since the certificate was declaring customary right of villagers to use the way over the property acquired by the defence authorities. The order expresses that Village Officer (Talathi) is required to be dealt with administration action. The learned Additional District Judge has criticized this order because according to him, Collector had no occasion to review the position after he had issued an order sanctioning construction of road under Employment Guarantee Scheme on the basis of said certificate. The answer to this query put by the learned Additional District Judge to himself finds place in paragraph 8 of the written statement filed by defendant Nos. 1 to 4. When the Collector informed the defence authorities about sanctioning the road under EGS and directed them to permit construction of the road, Collector was informed by the defence authorities that such permission for construction of the road could not be granted.
The Collector has powers to revise the orders passed by Tahsildar under Section 5(2) of the Mamlatdar's Courts Act and was justified in reviewing the order of Tahsildar, if an exception was taken by the holders of the land, over which Tahsildar had declared a right of customary way without hearing the holders.
13. It appears that the Collector, Ahmednagar, has filed written statement in the matter on 26-2-1998, copy of which is available at paper book pages 66 to 70 and if the statement of Collector is the written statement is to be accepted, authenticated village map does not show the existence of any such track or right to use the track as a road. He has explained as to how the certificate was noticed to have been issued on the wrong footing, it was cancelled and Collector also cancelled sanction for construction of the road under EGS scheme, since sanction was also based on this wrong and illegal certificate. In fact, when the plaintiffs have come with a case that segment AB is "public road" and when Collector was a party, it was grossly erroneous on the part of the lower Courts not to refer to the written statement of Collector. In order that a particular way, lane, ally, road is a "public way" or "road", it must be land not held by any person legally capable of holding it and it must be absolutely vested in the State, Collector, being the representative of State on record, his written statement ought to have received due consideration. In the absence of support from the Collector to the contention that segment AB is a "public road", it was imperative on the part of plaintiffs to obtain documentary evidence in the form of copy of award or the record, which is allegedly seen by plaintiffs in the office of Defence Estate Officer showing the existence of segment AB as "public road".
14. The matter does not end here. A reference to letter dated 28-2-1995 by Col. S. K. Sharma, Administration Commandant, indicates as to how this segment AB was seen by the citizens. This letter is addressed to one Mr. Sharad M. Mutha, 83, Manik Nagar, Pune Road, Ahmednagar. From the subject of the letter, "Permission to develop Kachha track into Pakka road in BTR ACC school training area", it can be seen that this is a letter in response to request by Mr. Sharad Mutha for permission. This letter indicates that what was in existence in the year 1995 was only a track and Mr. Mutha approached the defence authorities for permission to convert the track into a mettled road. Fact that Mr. Mutha sought permission of defence authorities leads to inference regarding awareness of Shri Mutha that the track was not a public road, but it was a track within full control and supervision of the defence authorities for whom the lands were acquired as back as in 1907. The consent by Col. Sharma vide this letter dated 25-2-1995 was subsequently withdrawn by his letter dated 25-7-1995 is another aspect.
This conduct of seeking permission from defence authorities shows that segment AB was not seen as a public road by Mr. Mutha, in one more way. If this was a "public road", ordinarily citizens would approach the State Government authorities for development of the road for their use. Ordinarily nobody would take the responsibility of constructing the road on his own and at his own costs. Even a vigilant citizen would try to mobilise Government machinery to develop/construct the road and persuade/compel them to do so at the cost of public exchequer.
15. Learned counsel for the plaintiffs has placed reliance upon the judgment of Writ Appeal No. 3549/1997 decided by a Division Bench of Karnataka High Court on 23-1-1998. In that matter the defence authorities having army centre in the cantonment area of Belgaon city had closed as many as 16 roads. It is evident from the judgment that these were regular roads already constructed and named in the usual fashion. Army authorities had also admitted blocking of as many as 7 of those roads.
In the light of these facts, it was held that the roads were the property of Union Government and citizens had a right to use those roads. In the matter at hands, from the correspondence of 1995 and till the time a sanction order was issued for construction of road under Employment Guarantee Scheme in the year 1995 based on the certificate of Tahsiidar, which was subsequently cancelled, there does not appear any constructed road. It was only a cart way. In order to claim that petitioners or villagers have a right to use the way, in the case, it was necessary for plaintiffs to establish that the road was treated as property of the State and dedicated to the citizens. No such evidence is on record. On the contrary events in the near past prior to filing of the suit indicate that even citizens believed that the suit way was property and under complete control of defence authorities.
For the reasons discussed above, the findings of both the lower Courts that plaintiffs have established prima facie case is not sustainable. Both the Courts have failed to address to the aspect whether segment AB is a "public road".
16. So far as balance of convenience is concerned, observing that there is no alternate route, the Courts have arrived at a conclusion that the same stands in favour of plaintiffs. In fact, when plaintiffs have failed to establish prima facie case of enforceable right, favourable finding on issue of balance of convenience is not sufficient to persuade the Court to pass an order in their favour. Map Exhibit A is provided by the Advocate of plaintiffs. The same, when compared with map Exhibit A in the paper book at page 20, it is evident that from villages Burhanagar, Bhingar and even properties of plaintiffs abutting the eastern boundry of property held by defence authorities, there are approach roads by which one can reach the junction of Ahmednagar-Aurangabad road and Manmad road. These roads are partly visible in the map provided by learned counsel for plaintiffs and their terminal part is available at paper book page 20. There is a road starting from Gut No. 324 owned by plaintiffs going to the south and joining Bhingar road at the end of Gut No. 351. This Bhingar road, on crossing Ahmednagar Aurangabad road is named as "Manmad Road" in the map at page 20.
On reference to report of the Court Commissioner that is filed before the trial Court, and especially the concluding part, it is evident that defendants and their Advocate informed the Court Commissioner that alternate route was available to the plaintiffs. Commissioner asked them to show the same and Commissioner has described this road in the last paragraph. However, the plaintiffs and their representative refused to accompany the Commissioner to see this road, saying that inspection of such a road was beyond the scope of Commission work. This conduct on the part of plaintiffs invites adverse inference against them, that they are conscious of existence of alternate route.
In this context, the allegation levelled by defendants cannot be ignored. It is contended by the defendants that plaintiffs are desirous of bringing the properties under non-agricultural use and for its convenience a shortcut is being tried to be created over the land held by defence authorities. In the light of existence of alternate route, lower Courts could not have held the issue of balance of convenience to be in favour of plaintiffs.
17. Learned counsel for the defendants has taken exception to the extent of relief granted at this interim stage. The operative part of the trial Court order, which is confirmed by the first Appellate Court, is reproduced in the initial part of this judgment. As rightly pointed out, although plaintiffs claimed that plaintiffs and villagers have a right to use the disputed way, they prayed for injunction restraining the defendants from disturbing/obstructing the plaintiffs from using the said road. Yet the trial Court has granted injunction restraining the defendants from objecting passage by plaintiffs as also "other villagers". In fact, the reference that "other villagers" also used the road is for the purpose of claiming that road is a "public road" and plaintiffs had not sought relief in favour of "other villagers". This part of the order is not as much objectionable as the terminal clause in the injunction order.
The terminal clause injuncts the defendants from obstructing the plaintiffs and other villagers in converting the suit road into a tar road. This was the final relief claimed by the plaintiffs and if the same was to be granted at the stage of interim injunction, there is no purpose in continuing with the suit. Even after coming to a conclusion that plaintiffs have a right to use the way, the Civil Court could have left the issue of construction of road to State Government. If that is a "public road", it is the responsibility of the State to maintain it in serviceable condition and on record there are not any reason justifying such an urgency that plaintiffs could be allowed to construct the tar road themselves.
The judgment of the trial Court offers no reason why it was no eager to grant final relief at the interim stage. Order 39 Rule 1 empowers the Courts to grant temporary injunction or make such other orders, as may be deemed proper, for the purpose of staying and preventing the wasting, damaging, alienation, sale or removal or disposition of the property or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit. The Lower Courts although convinced that the road existed, it was a "public road" (which is not the finding of lower Courts") and, therefore, plaintiffs and villagers had a right to use the same, possible injury to the plaintiffs and villagers by denial of exercise of such right due to obstruction by defence authorities, during the pendency of the suit, could have been prohibited by limited injunction restraining defence authorities to obstruct the passage. The sanction in favour of plaintiffs and villagers to convert the road into tar road during the pendency of the suit would not be justified, even if the findings of the lower Courts were to be upheld by this Court.
18. Since the disputed road is not proved to be a "public road", it was error on the part of lower Courts to hold that it was a road over which citizens had right to pass. Observation that there is no alternate route is erroneous and against record to that extent, if map at page 20 of the paper book (which is believed to be plaint map) is considered. Therefore, the order of the trial Court, although confirmed by District Court, deserves to be set aside.
The civil revision application is allowed. Order dated 18-7-2001 passed by Additional District Judge, Ahmednagar, in Miscellaneous Civil Appeal No. 61/1998 and dated 24-4-1998 passed by Civil Judge, Senior Division, Ahmednagar, in Regular Civil Suit No. 320/1997 are quashed and the application for interim injunction is rejected. Rule made absolute accordingly.
The suit is already five years old and therefore, deserves to be disposed of at an early date. The trial Court is, therefore, directed to give priority and dispose it of after hearing all the parties on merits, within a period of six months from today.
Dt. 7-2-2002 Advocate Shri D.A. Gursahani for the respondent Nos. 1 to 7 today submitted oral request that the order passed by this Court vacating the injunction granted by lower Courts may be stayed for a month or so in order to enable the respondents to approach the Hon'ble the Supreme Court. He has added that his prayer is oniy with a view that some school going children loose the facility of passage by the subject route, which they were able to use for the last 4 and half years in view of interim injunction granted by lower Courts.
Advocate Shri P. G. Godhamgaonkar for revision petitioners has strong objection to grant of any such relief, since according to him respondents do not have any right. In order under question, the finding of the trial Court regarding existence of some cart way is upheld by this Court. The prayer of respondents is, as submitted by Shri Gursahani, simply on humanitarian ground for the school children only. Therefore, the order is granted partial stay as follows.
For a period of four weeks from the date of above order, the defence authorities shall not object the school going children from passing by the subject route. If necessary the defence authorities are at liberty to issue suitable passes to the school going children only.
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